All the Perl that's Practical to Extract and Report

Navigation

The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Without JavaScript enabled, you might want to
use the classic discussion system instead. If you login, you can remember this preference.

Please Log In to Continue

One justice, Stevens, said the Miller test can't be used for the Internet, because community standards vary too much. While this is a problem with Miller, it's always been dealt with reasonably before.

How can it work? There is a huge difference between community standards in different communities. Does this law restrict itself to only apply the standards of the community where the site is hosted? If not, justice Stevens argument is exactly right - a web site that is fully within the community standards

The short answer to "how it can work" is that it is a lot more complex than it appears, and you can't just look at the words used and judge based on that. There's a lot of caselaw and precedent behind it.

For starters, you need to look at how similar cases have been handled, where the distributed content was not specific to a particular community. From the current decision, in re a decision about a national mailing (Hamling):

Some speech regarding the "swinger" lifestyle would be seen as immoral porn by some communities and as protected speech by others. Few communities would claim that "swinging" education belongs in a sex ed curriculum.

Not informational text, no, it would not have anything to do with COPA. It would need to depict sexual acts in a patently offensive way. Simply remarking that people have sex with certain other people is not a depiction or description of the sexual act that falls under the Miller test. Now, if the speech did go into graphic detail about how that sex "worked", then it might be covered under COPA, perhaps. But mere educational materials about the nature of swinging clearly do not fall under the Miller tes

I'm thinking of a swinger community site... where you'll find not only informational material, but also "personal adds" type things where folks may have explicit photos and descriptions of interests, as well as irc-type chat rooms for discussion including "chat sex". Some might find that material offensive, particularly in the context of sexual relations not limited to one's spouse.

I included more detail for the ACLU... maybe they'll see something useful to extract from the example. Maybe not.

Well, many explicit photos could be covered under this law. That does not render the entire site illegal. I am not sure what your point is supposed to be. The whole point of the law is that certain "pornographic" material would be illegal if readily available to minors, and I can't see what swinging has to do with anything in the law, nor what putting that material on a swinging web site has to do with anything.

> variation between the most and least restrictive> communities is not so great with respect to the> narrow category of speech covered by COPA as to,> alone, render the statute substantially overbroad

OK, so OC is saying that variation is not so great. The swinger example is intended to be a possible instance where variation might be greater.

> I agree, given respondents' failure to provide> examples of materials that lack literary, artistic,> political, and scientific value for minors, which> would nonetheless result in variation among> communities judging the other elements of the test

A swinger web site could be viewed (by a litigious non-swinger parent, for example) as lacking in literary, artistic, political, and scientific value for minors.

(one prong: "non-serious")

...and could nonetheless result in variation among communities judging the other elements of the test.

(the other prongs: "prurient" and "sexually explicit")

Suppose we take for granted that the site contains sexually explicit material. That leaves us with the "prurient" prong. Swingers will say that their lifestyle is as prurient as Mr. and Mrs. MarriedCouple having sex in their own bedroom: ie, not at all. Some non-swingers will say that their lifestyle is the work of the devil, the cause of the collapse of the family unit, and a root of imorality in general.

These communities will judge differently.

The intent was to provide an example of the sort which OC explicitly noted was absent from the ACLU's case, and which from her words, would at least have made the court think a bit more... even if they ultimately reached the same judgement.

I'm not trying to make an argument, just to provide an edge case which was noted to be absent. The ACLU may or may not find the edge case to be appropriate or interesting or useful.

I think you are misunderstanding the "sexually explicity" test. Perhaps not. But the material must depict, describe, or represent, in a patently offensive manner, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast.

A swinging web site could not, even if it were found to appeal to prurient interest and found to have no serious $foo value, be found to violate this law unless it had

> Maybe you are trying to make the argument that some> people would find the swinging web site's depiction> of sexual acts to be more patently offensive than a> singles' web site's similar depictions by virtue of> the swinging nature

well, I'm trying to provide an interesting case... not really to make an argument. However, part of *why* I think it is an interesting case is related to your comment above. You say "more patently offensive" above, while I think that I mean to say that some membe

If it were of the same essential manner as an illustration in a sex education text, then it won't appeal to prurient interest, and the law is therefore not applicable anyway... if it does appeal to prurient interest, then so would the other, and you must consider its education value. If this photo is clearly framed as being of an educational nature, as the one in a sex education text clearly is, then again, I see no potential problems (leaving aside abuse of the law by prosecutors and juries, which is pos